Dave Eggers' new novel, The Circle, is a thought-provoking read for anyone working on surveillance, state secrets, corporate governance, privacy, or First Amendment issues as broadly defined. There are have been some questions raised, as in the review in Wired, whether the book is technologically sophisticated - - - I'd say it's not - - - or whether it works as literature - - - again, I'd lean towards not. I also think there are some gender and sexual politics that merit further analysis and mar the novel. But even with these faults, it is one of those books that gives expression to the way one sees daily life in our connected age.

Margaret Atwood has a terrific review of the book in New York Review of Books that gives a good overview of the themes, laced with literary references that the novel itself lacks. Discussing the book over at the New Yorker Blog, Betsy Morais contextualizes the novel, including some of the criticisms and analogues. There's a good rundown of reviews and the divisions about the book in The Atlantic "Wire."

The book lingers after it is read because it raises interesting
questions about the relationships between corporate power and
government, as well as our complicity in this internet and social age. And it's a quick read - - - especially electronically.

UPDATE: And here's the NYT Sunday Book Review by Ellen Ullman, who concludes the novel "adds little to the debate" : "Books and tweets and blogs are already debating the issues Eggers
raises: the tyranny of transparency, personhood defined as perpetual
presence in social networks, our strange drive to display ourselves, the
voracious information appetites of Google and Facebook, our lives under
the constant surveillance of our own government."

Justice Scalia previously gave a brief interview to New York Magazine on "his childhood," and this week's magazine has an extensive interview with Jennifer Senior about almost everything else.

What newspapers does he read? Is he softening on his views of homosexuality? Does he believe in hell and the devil? Are women protected by the Fourteenth Amendment? What are his hobbies other than hunting? His television viewing? Favorite novels?

Most wrenching decision?:

Probably the most wrenching was Morrison v. Olson, which
involved the independent counsel. To take away the power to prosecute
from the president and give it to somebody who’s not under his control
is a terrible erosion of presidential power. And it was wrenching not
only because it came out wrong—I was the sole dissenter—but because the
opinion was written by Rehnquist, who had been head of the Office of
Legal Counsel, before me, and who I thought would realize the importance
of that power of the president to prosecute. And he not only wrote the
opinion; he wrote it in a manner that was more extreme than I think Bill
Brennan would have written it. That was wrenching.

But later, he comes back to the opinion:

As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison,
I thought, was devastating—devastating of the majority. If you ask me
which of my opinions will have the most impact in the future, it
probably won’t be that dissent; it’ll be some majority opinion. But
it’ll have impact in the future not because it’s so beautifully reasoned
and so well written. It’ll have impact in the future because it’s
authoritative. That’s all that matters, unfortunately.

It's not what he terms his most "heroic" decision, however, reserving that for a very different sort of opinion.

I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.

I thought that took some guts. Most of my opinions don’t take guts. They
take smarts. But not courage. And I was proud of that. I did the right
thing and it let me in for a lot of criticism and it was the right thing
to do and I was proud of that. So that’s the only heroic thing I’ve
done.

Scalia's 2004 Memorandum in Cheney v. United States District Court for the District of Columbia is here and a good discussion of the controversy from Michael Dorf is here.

Given the standards of recusal - - - despite continuing controversies - - - there is little reason that Scalia or any other Supreme Court Justice should not give as many interviews as possible, even if they might reveal "bias."

UPDATE:

Dahlia Lithwick over at Slate has an excellent analysis of the interview, including asking for the interviewer's perceptions about the interview: Are Jennifer Senior and Justice Scalia as far apart as they seem?

I asked Senior whether this [perception] felt accurate. She replied, “It's
embarrassing, but the overlap between our worlds is almost nonexistent.
It explains why the left and the right both responded so
enthusiastically to this piece. Each side sees its own view, affirmed.
One sees a monster and the other sees a hero. It's extraordinary,
actually. The O'Reilly constituents think he's speaking sense; the Jon
Stewart vote thinks virtually everything the guy says is nuts.”

Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow recently published an outstanding
volume, What the Best Law Teachers Do(Harvard). As the title says, the book is a compilation of the best practices of the best teachers in our field. It should be at the top of the reading list of any law professor.

We're thrilled at the ConLawProfBlog that our own Ruthann Robson is one of just 26 professors featured in the book. (Other con-law-familiar names include Julie Nice and Heather Gerkin.) Prof. Robson is profiled throughout the book, on everything from class prep to engaging students to providing feedback and evaluation--offering plenty of best-practices for any con law prof. Check it out.

As reported in The Detroit News this afternoon, a Michigan State University creative writing professor and novelist, William S. Penn, has been relieved of his teaching duties by administration for his anti-conservative and anti-Republican remarks made during class.

Penn is a highly regarded writer and professor whose work often centers on his Native American/Anglo identity. For example, his 1996 creative nonfiction book, All My Sins are Relatives, won a North American Indian prose award.

Given the current constructions of the Supreme Court's 2006 decision in Garcetti v. Ceballos, Penn will have a difficult time showing he is speaking as a citizen rather than as a government employee and thus entitled to First Amendment protection. Indeed, the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City, which we discussed when it was decided in 2010, upheld the termination of a high school creative writing teacher who assigned Ray Bradbury's Fahrenheit 451. To explore that
book’s theme of government censorship, she also developed an assignment based
on the American Library Association's "banned books."

However, when the Sixth Circuit rejected the "academic freedom" argument of Evans-Marshall, it opined that such a concept is
limited to universities and does not extend to high schools. As a university professor, Penn may have a better chance at making an academic freedom argument.

This could make a terrific in class exercise for ConLawProfs teaching First Amendment.

The authors, Matt Apuzzo and Adam Goldman, two AP reporters who won a Pulitzer Prize for their reporting on the New York City Police Department's surveillance of Muslims, gave an interview to "The Gothamist" and it's definitely worth a read. For example, the authors say that some police officials essentially said "Hey look we
have to think differently about activities that would be protected by
the First and Fourth Amendments because they could actually be
precursors to terrorism." As one author responds: "That's just an incredible thing, when you think about the fact that a
municipal police department is taking it upon itself [to decide] that
constitutionally-protected speech is a warning sign for terrorism."

The authors state that their book is well-sourced, and indeed, the book has a companion website with maps and documents.

The authors will be appearing with Don Borelli, Former FBI Assistant Special Agent in Charge of the New York Joint Terrorism Task Force, at the Brennan Center for Justice in NYC on September 16, 2013. Info and rsvp here.

Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.

Here are two that should not be missed.

Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington." Ellis states, "the question we must confront in 2013 is whether we have been
tranquilized into the lethargy of gradualism concerning the work that
needs to be done." Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the
cover of apathy, spurred by the myth of post-racialism and the supposed
fear of constitutional overreach."

And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor. However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material." Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General. The NPR story has a link to the FBI archive on King.

The intertwining of our clothes and our Constitution raise fundamental questions of
hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear -- or don't -- is ubiquitous.

In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.

The underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush
Administration and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information. As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,

Chapter
9 of the book, entitled “A Rogue Operation,” reveals details about Classified
Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program
“Operation Merlin” and described it as a “failed attempt by the CIA to have a
former Russian scientist provide flawed nuclear weapon blueprints to Iran.”
J.A. 722. Risen does not reveal his sources for the classified information in
Chapter 9, nor has he indicated whether he had more than one source. However,
much of the chapter is told from the point of view of a CIA case officer
responsible for handling Human Asset No. 1. The chapter also describes two
classified meetings at which Sterling was the only common attendee.

While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the
Classified Information Procedures Act (“CIPA”), 18 U.S.C. app.
3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective. The majority opinion was unequivocal:

There
is no First Amendment testimonial privilege, absolute or qualified, that
protects a reporter from being compelled to testify by the prosecution or the
defense in criminal proceedings about criminal conduct that the reporter
personally witnessed
or participated in, absent a showing of bad faith, harassment, or other such
non-legitimate motive, even though the reporter promised confidentiality to his
source.

The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg
v. Hayes. It did not credit the argument that Justice
Powell’s concurring opinion in Branzburg made Branzburg's holding less clear. Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a
tacit endorsement of Justice Stewart’s dissenting opinion, which argued in
favor of recognizing a First Amendment privilege in criminal cases that could
be overcome only if the government carries the heavy burden of establishing a
compelling interest or need." The majority stated that just as in Branzburg, Risen has

“direct
information .
. . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709.
Indeed, he can provide the only first-hand account of the commission of a most
serious crime indicted by the grand jury –- the illegal disclosure of
classified, national security information by one who was entrusted by our
government to protect national security,
but who is charged with having endangered it instead.

That the crime is the leak itself does not seem to be noteworthy. The majority likewise rejected the notion that there was any common law privilege.

For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:

Protecting
the reporter’s privilege ensures the informed public discussion of important
moral, legal, and strategic issues. Public debate helps our government act in
accordance with our Constitution and our values. Given the unprecedented volume
of information available in the digital age – including information considered
classified – it is important for journalists to have the ability to elicit and
convey to the public an informed narrative filled with detail and context. Such
reporting is critical to the way our citizens obtain information about what is
being done in their name by the government.

For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg. Recognizing that the "full
import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate
courts have subsequently hewed closer to Justice Powell’s concurrence – and
Justice Stewart’s dissent – than to the majority opinion, and a number of
courts have since recognized a qualified reporter’s privilege, often utilizing
a three-part balancing test." He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg
concurrence and our established precedent to announce for the first time that
the First Amendment provides no protection for reporters." Judge Gregory would also recognize a "common
law privilege protecting a reporter’s sources pursuant to Federal Rule of
Evidence 501."

While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution. The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .

While for many Conlawprofs Loving v. Virginia is the "face" of love and marriage across racial divides, looking both backward and forward from the 1967 case can add depth to teaching and scholarship about the issue.
(And if it seems not to be an issue any longer, a quick look at the "controversy" caused by a cereal advertisement featuring an interracial couple and their child is worth considering).

Her exploration focuses on Rhinelander v. Rhinelander, a case that did not involve a constitutional issue, except to the extent that racial categorizations always implicate issues of constitutionalism and equality. As Onwuachi-Willig describes in a piece in the UC Davis Law Review,

Alice
Beatrice Jones was a working-class woman, who met Leonard Kip Rhinelander, a wealthy white male descendant of
the Huguenots and heir to millions of dollars, in the fall of 1921. . . . [They
married in a private ceremony and] Just two weeks later, on November 26, 1924,
Leonard filed for annulment of his marriage to Alice. He argued that Alice had
lied to him about her race. Leonard claimed that Alice had committed fraud that
made their marriage void by telling him that she was white and by failing to
inform him that she was of “colored blood.”

Rather than litigate her whiteness as many
expected, she argued that he knew her racial status.

The trial
of the Rhinelanders proved to be shocking on many fronts. It involved
racy love letters, tales of pre-marital lust and sex, and the exhibition
of Alice’s breasts, legs, and arms in the courtroom to prove that
Leonard, who had seen her naked before marriage, would have known that
she was colored at the time of their nuptials. What was
most scandalous about the Rhinelander case,
however, was the trial’s end. The jury
returned a verdict for Alice, determining that Leonard knew her racial
background before marriage yet married her anyway.

Onwuachi-Willig's book also provides contemporary arguments that current law fails to protect interracial couples, especially given the privileges that continue to be accorded on the basis of marriage.

As we wait for both Fisher v. UT and the same-sex marriage cases of Perry and Windsor, or as we contemplate their meanings once the opinions are rendered, Onwuachi-Willig's book is an important and pleasurable read.

Most ConLawProfs would agree that First Amendment doctrine suffers from incoherence, but fewer may agree that institutionalism is the solution, and even those who do favor institutionalism may differ on their selection of the institutions deserving deference.

But for anyone teaching or writing in the First Amendment, Horwitz's book deserves a place on a serious summer reading list. My longer review appears in Law and Politics Book Review.

The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer. Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.

the riveting and
compulsively readable tale of the epic battle between Don Blankenship,
the man who essentially ran the West Virginia coal industry through his
company Massey Energy, and two seemingly ordinary attorneys: Bruce
Stanley and David Fawcett. The centerpiece of the story is a West
Virginia mine owner whom Blankenship purposefully bankrupted, and on
whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar
verdict that is still unpaid. In hopes of having the ruling overturned
by the West Virginia Supreme Court, Blankenship sought to “buy” a seat
on the court by contributing over $3 million to the successful campaign
of a conservative judicial candidate. However, the U.S. Supreme Court
eventually found that Blankenship’s contributions were too much to allow
the new West Virginia justice to hear the case. Leamer has produced a
Shakespearean tale of greed, corporate irresponsibility, and personal
hubris on the one hand, and idealism, commitment to justice, and
personal sacrifice on the other. Blankenship is a villain for all time,
and Stanley and Fawcett are lawyers who bring honor to their profession.

A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.

Integral to the same-sex marriage cases of Perryand Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas. Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause.

Professor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review. Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights. Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the
life of one of the two men
most central to it?" Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay.

Resnik's 2013 essay, Equality’s Frontiers: Courts Opening and Closing, adapted from remarks at an event celebrating Justice Ginsburg’s gender-equality jurisprudence and drawing on the book, is a brief but evocative look at how justice and equality are - - - and were - - - portrayed. Two images Resnik includes and analyzes from WPA murals in courthouses are particularly salient.

First, there is an image of Justice as Protector and Avenger in a South Carolina courtroom.

Not particularly remarkable, one might think, until one reads about the objections to "justice" looking like a “barefooted mulatto woman wearing bright-hued clothing.”

Second, there is an image in a Idaho courthouse:

Should this be removed as offensive? Or displayed as an accurate part of the history of justice and equality? Resnik shares the decisions of state officials, ultimately made in consultation with Native tribes.

Resnik contends that such images, including these from courthouses in South Carolina and Idaho,

make a first point—that courts were one of equality’s
frontiers. The conflicts about what could or could not be shown on courthouse walls mirrored conflicts about what rights people had in court.

A terrific read - - - and look - - - as well as a reminder of the richness of the Representing Justice book.

The senior Clark, appointed by Harry Truman, resigned from the Court at age 67 because Lyndon Johnson appointed the junior Clark as Attorney General. While we understand the conflict, the scenario causes most contemporary readers to pause. Indeed, it is difficult to imagine a current sitting Justice making such a sacrifice for his child's career. Especially since the father and son seemed to have very different politics.

Wohl uses the men's careers to illuminate not merely the personal dyamics, but the constitutional and political changes. Consider this:

As a young government lawyer, Tom Clark was a key figure in enforcing
the relocation of Japanese Americans, and as Attorney General he was
vilified by civil liberties advocates for the Cold War policies he
implemented, even as he promoted a progressive strategy on civil rights.
Ramsey began his career to the ideological left of his father, was
intimately involved in enforcement of civil rights laws during the
turbulent 1960s, as Attorney General fought to expand protections of
individual rights, and as a private attorney represented clients on the
farthest reaches of the individual rights–government power spectrum.

The critique of marriage as a legal institution may seem a bit churlish as the same-sex marriage cases go to the United States Supreme Court this week. It may seem as if there is universal agreement that marriage is "good" and the only question is whether governments can exclude same-sex couples from this "good."

Yet there is certainly a different way to conceptualize the issue. In Not the Marrying Kind, U.K. Law Professor Nicola Barker engages the issues from several perspectives. Importantly, her discussions do not portray the lesbian or larger LGBT communities as
monolithically desiring marriage, but rather as critically engaged in
questions of formal equality. She is scrupulous about presenting the
complexities of opinions, theories, and strategies across several
continents. Barker's book is a treat even readers who have been following these developments for
years or are suffering from same-sex marriage fatigue.

Carroll is a reporter for The Guardian and the reviews of the British edition stress the fine reporting and indicate this is a book worth reading. For example, in Literary Review: "Rory Carroll has written a well-considered and painfully fair epitaph for the Chávez regime" and in The Independent: "Rory Carroll is well positioned to provide a verdict. In good reporter
fashion, he diligently tracks down his sources, turning up a colourful
cast of red-shirted Chavista loyalists, bitter political opponents, and
the everyday Venezuelans in between."